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OSHA: Expect Ergo Citations Under General Duty Clause

The U.S. Occupational Safety and Health Administration (OSHA) revealed in an April 7, 2010, webcast that the agency plans to step up use of the Occupational Safety and Health Act’s general duty clause to crack down on ergonomic violations.

“We recognize that thousands of workers annually suffer from musculoskeletal conditions associated with ergonomic hazards, and OSHA must do more,” Assistant Secretary of Labor David Michaels said during the webcast, which outlined the agency’s plans for the next several years.

“OSHA’s field staff will be looking for ergonomic hazards in their inspections, and we will be providing them with the support and backup they need to enforce under the general duty clause,” he added.

To the criticism that the use of the general duty clause is overreaching when it comes to ergonomics, which lacks a clear standard, OSHA Director of Technical Support and Emergency Management Tom Galassi stated that enforcement will not be left to the discretion of the inspector. “In order to document a general duty clause violation for ergonomics, among other things, the agency would have to demonstrate industry recognition and feasible ways to abate the hazard,” he said.

Dorothy Dougherty, director of standards and guidance, added that OSHA hopes to issue the rule on adding a musculoskeletal disorder column to the OSHA 300 Log in time to implement the new requirements on Jan. 1, 2011, when the next annual reporting cycle would begin. The comment period on this rule had been extended to March 30, 2010, to provide stakeholders with additional time to submit their comments.

“OSHA is currently reviewing the comments and has begun work on drafting the rule,” Dougherty said.

Six-Year Plan

The agency unveiled its strategies and approaches for improving workplace safety and health as part of the Department of Labor’s six-year plan announcement covering the fiscal years 2010-2016, an announcement required by the 1993 Government Performance and Results Act. The department’s plan is expected to be in place by Sept. 30, 2010.

The agency’s strategic plan does not outline specific regulatory actions but consists of general goals, aiming to:

Strengthen enforcement capabilities by targeting the most egregious and persistent violators.

Strengthen regulatory capabilities.

Increase OSHA’s presence in the workplace.

Protect workers in high-hazard occupations.

Protect vulnerable and hard-to-reach worker populations.

Review and restructure penalties to ensure that penalties imposed are consistent with the seriousness of the violation and act as effective deterrence to violators.

Maintain a strong outreach and education program.

Enhance and strengthen compliance assistance programs for small businesses.

OSHA intends to measure its success “differently” than in the past, using “broad, high-level measures,” to reduce the four leading causes of workplace fatalities (falls, electrocutions, caught in or between, and struck by) and increasing the number of targeted hazards abated, including hearing loss in manufacturing, illnesses and workplace amputations.

Industrial Hygiene

OSHA Deputy Assistant Secretary Rich Fairfax addressed the agency’s aim to increase industrial hygiene inspections. With over 40,000 worksite inspections scheduled for fiscal 2010 and 110 new compliance staff budgeted, “our health inspectors will be focusing more on industrial hygiene issues, such as noise and hearing loss,” he said.

Fairfax said that OSHA’s regulation of toxic chemicals will be examined and permissible exposure limits (PELs) updated. “OSHA recognizes that our PELs are outdated,” he said. While a task force looks at the issue, “we will be relying on existing PELs, the respiratory protection standard, and hazard communication,” he added.

Michaels said that the agency will work to accomplish their industrial hygiene goals through the National Emphasis Programs in the targeted construction and manufacturing industries and continue to provide outreach activities for employers and workers.

The Future of VPP

Many webcast participants expressed concern about the future of the Voluntary Protection Programs (VPP), which promote worksite safety through cooperative relationships among management, labor and OSHA.

President Barack Obama’s 2011 budget request proposed a funding cut for the programs, from $73 million in fiscal 2010 to $70 million in fiscal 2011.

OSHA Director of Administrative Programs Kim Locey explained that the agency is “not eliminating the VPP, but due to budgetary issues we are using our limited resources where they are most needed by focusing on employers that do not do a good job protecting their employees.”

Locey stressed that OSHA is searching for alternate, nongovernment-funded ways to continue the program, including a fee-based system.

OSHA Director of Cooperative and State Programs Steve Witt explained that OSHA will be shifting VPP field inspection staff to enforcement activities because of the “particularly great need.”

State Plan Oversight

Federal OSHA’s state plans review is scheduled to be completed by April 30, 2010. Witt said that the agency continues to support the 27 state OSHA plans and that “there is no plan to take away safety and health responsibilities from states meeting their obligations.” The continuing evaluation, however, will determine the degree of federal monitoring needed and funds allocation.

Other initiatives mentioned include: restructuring penalty calculations to result in higher penalties for violators; streamlining the rule-making process to maximize the agency’s resources by saving time and effort; revamping OSHA’s inspector training program resulting in an extensive, multiyear, developmental program for new compliance officers; and developing training courses for whistle-blower protections.